Excerpt:property - acquisition - section 19 (4) of kerala land acquisition act, 1961 - respondent no. 1 issued notices for acquisition of appellant land - respondent no. 2 gave direction for non-compliance of section 5 on ground of urgency of acquisition under section 19(4) - whether respondent no. 1had any jurisdiction to invoke section 19 (4) and whether respondent no. 1 can issue declaration under section 8 (1) - respondent no. 2 had power to invoke section 19 (4) for non-compliance of provisions of section 5 only in case of emergency - section 19 (4) can be invoked - only possession of land cannot be put-off for one month - section 19 (4) cannot be invoked just to suit convenience of land acquisition officer - delay of more than one month in issuing notice to appellants itself belies story of..........of which proceedings are initiated by ext, p-2 notification dated 14-6-1973 by the 1st respondent--land acquisition officer. the petitioners question exts. p-2 and p-3 notifications of the 1st respondent. in ext. p-2 notification the fact that the 2nd respondent-district collector, ernakulam has given a direction on 6-6-1973 under section 19 (4) of the kerala land acquisition act, 1961 (for short, the act) that section 5 of the act need not be complied with in view of the urgency of the acquisition in question is also stated. ext. p-3 is the notice in form 4 (a), two questions that are raised are (1) whether in view of the facts and circumstances of the case there is any justification in resorting to emergency acquisition by invoking section 19 (4) of the act and (2) in the absence of.....

Judgment:ORDER

1. The petitioners in this Original Petition are owners of lands for the acquisition of which proceedings are initiated by Ext, P-2 notification dated 14-6-1973 by the 1st respondent--Land Acquisition Officer. The petitioners question Exts. P-2 and P-3 notifications of the 1st respondent. In Ext. P-2 notification the fact that the 2nd respondent-District Collector, Ernakulam has given a direction on 6-6-1973 under Section 19 (4) of the Kerala Land Acquisition Act, 1961 (for short, the Act) that Section 5 of the Act need not be complied with in view of the urgency of the acquisition in question is also stated. Ext. P-3 is the notice in Form 4 (a), Two questions that are raised are (1) whether in view of the facts and circumstances of the case there is any justification in resorting to emergency acquisition by invoking Section 19 (4) of the Act and (2) in the absence of any consent by the State Government under Section 43 of the Act and without any agreement executed by the Malankara Orthodox Syrian Church Medical Mission Hospital at whose instance the acquisition is started, has the 2nd respondent any jurisdiction to invoke Section 19 (4) of the Act and whether the 1st respondent can issue Section 8 (1) declaration.

2. The petitioners' case as revealed in the Original Petition is as follows: In the year 1972 two prominent persons of Kolen-cherry whose names are mentioned in the Original Petition approached the petitioners enquiring whether they are willing to sell the property they own and possess in Sy. Nos. 454/5 and 456/0 of the Aikaranad North Village. The petitioners expressed their un-willingness to part with the property. Later, they came to know that under the influence of the above said persons the petitioners' properties were going to be compulsorily acquired for the construction of a road between the Malankara Orthodox Syrian Shurch Medical Mission Hospital and its Doctors' quarters. There are already motorable roads leading to the Doctors' quarters and hence there is no necessity for acquiring the petitioners properties for the purpose of constructing a new road. The intended acquisition is purely mala fide and at the instance of the above two persons who are highly influential. Later, the 1st petitioner saw the village authorities taking measurements in the properties. So, he filed an application before the Tahsildar, Muvattupuzha on 24-6-1972. The village officer issued Ext. P-1 memo to the 1st petitioner to produce the relevant records before him. In July 1973 the petitioners came to know that Ext. P-2 notification was published in Kerala Gazette dated 26-6-1973 under Section 3 (1) of the Act stating that the petitioners' properties mentioned above are required for an approach road between the Medical Mission Hospital and its Doctors' quarters. The petitioners also received Ext. P-3 notice in Form 4 (A) dated 14-7-1973. It was thereupon that the petitioners approached this Court with this Original Petition.

3. By order dated 21-1-75 on C. M. P. No. 801 of 1975 this Court allowed the petitioner to amend the Original Petition to incorporate additional grounds E to J.

4. A counter-affidavit has been filed on behalf of the respondents. The statement in para. 2 of the counter-affidavit is that the acquisition in question is at the instance of the Secretary, Malankara Orthodox Syrian Church Medical Mission Hospital. In Para. 3 it is stated that as the matter was emergent the District Collector. Ernakulam by his proceedings dated 6-6-1973 accorded sanction to the 1st respondent to invoke the emergency provision of Section 19 of the Act in the matter of acquiring the land. In para. 6 of the counter-affidavit also the above statement is repeated. Except those statements, nothing more to show the nature of the emergency is mentioned in the counter-affidavit. The allegation of mala fides made in the Original Petition is denied in para, 7 of the counter-affidavit. In para. 8 it is mentioned that the 1st petitioner on 19-9-1972 has given a statement to the Tahsildar, Kunnathunad that he had no objection in forming the road along the northern side of his land so that no portion of the land will be left out on the northern side after the acquisition.

5. Shri N.N. Sugunapalan, the learned counsel for the petitioners, contends that the acquisition proceedings taken at the instance of the Secretary, Malankara Orthodox Syrian Church Medical Mission Hospital is without any bona fides as there is already motorable road to the staff quarters touching the northern and eastern sides of the petitioners' property. The proposed acquisition for a new road cutting the petitioners' property into two was initiated as a result of the pressure exerted by certain influentialpeople of the locality who are inimical to the petitioners. According to the learned counsel, even if a new road is to be constructed through the petitioners' property the alignment can be made in such a way so that no portion of the petitioners' property is left out on the northern side when the road in formed. The learned counsel further contend that at any rate there is no reason why the special powers regarding emergency acquisition contained in Section 19 of the Act be resorted to in the case of the acquisition in question. It is contended that this is done simply to deny the petitioners the opportunity of raising objections to the acquisition provided by Section 5 of the Act. The learned counsel points out that powers under Section 19 (4) of the Act can be exercised only in extreme cases of urgency. In the instant case, not only there was actually no such urgency but Ext. P-3 notice issued by the 1st respondent will make it clear that Section 19 of the Act was invoked with the mala fide intention of depriving the petitioners the opportunity to file objections under Section 5 of the Act and thus effectively contest the acquisition. As is seen from Ext. P-2 notification the decision to invoke Section 19 (4) of the Act was taken by the 2nd respondent on 6-6-1973, Ext. P-3 notice was issued to the petitioners only on 14-7-1973. Section 5 of the Act only gives one month's time to the petitioners to file objections. So, according to the learned counsel, there was no urgency in the matter to justify the denial to the petitioners of their valuable right under Section 5 of the Act and the 2nd respondent has acted arbitrarily. It is further pointed out that a mere statement of urgency is not enough but a definite opinion must be held by the Government or the District Collector. In support of his contentions the learned counsel relies on the following decisions: Madhavi Amma v. Revenue Divisional Officer 1960 Ker LT 920 = (AIR 1961 Ker 116), Seshagiri Maliar v. Special Tahsildar (1964 Ker LT 54 = AIR 1965 Ker 92), Kunhammad Keyi v. Tahsildar (1965 Ker LT 1021) and Abdul Mazid v. Yacoub (AIR 1965 Mad 329). In Madhavi Amma v. Revenue Divisional Officer (1960 Ker LT 920) = (AIR 1961 Ker 116) it was the corresponding Section 17 (4) of the Land Acquisition Act 1894 (Central Act) which came up for consideration. Interpreting the above provision Velu Pillai J. said:

'It is, however, imperative, that Government must hold a definite opinion within the meaning of Section 17 (4) as to whether it is the provisions of Sub-section (1) or of Sub-section (2) which are applicable to a given case. It if not enough if the Government has formed an opinion that any one of the provisions in Sub-sections (1) and (2) of Section 17 which after the amendment are many, is applicable; the opinion must be specific and must, under the two sub-sections, including the clauses and sub-clauses in Sub-section (2), be related either to the specific nature of the land contemplated by the sub-sections, or to the purpose of the acquisition tinder Clauses (a) and (b) of Sub-section (2). Where, on the terms of Section 17 (4) of the Act, it is possible that efferent opinions may be held by Government, the mere statement in Ext. A, as extracted above, is not sufficient compliance with the requirement, which is implicit, that a definite opinion must be held by Government, in order that the provision in Section 5A may be dispensed with. This, in my judgment is a matter affecting the validity or the legality of the notification under Seclion 6 of the Act, For example, in a case under Section 17 (1) only waste or arable land can be taken possession of, but not a horce-stead, and the provisions of Section 5A cannot be dispensed with in the case of the latter, unless it is 'land' of any of the categories in Sub-section (2); similarly, only 'land' satisfying the specifications in Section 17 (2) (a) and 'land' which in the Collector's opinion is needed for one or other of the purposes specified in the sub-clauses of Clause (b) of Section 17 (2), can be taken possession of immediately'.

'Under Section 17 (4) of the Act, the Government have to form an opinion about the applicability of Section 17 (1) or 17 (2). And when they so form an opinion and decide to dispense with the provisions of Section 5-A, they must be fully aware that a very valuable right statutorily conferred on a citizen to object to the acquisition proposed is taken away. Section 5A gives only 30 days' time to a person affected or interested to file his objections to the proposed acquisition by a notification under Section 4 (1). It appears to me, therefore, that any urgency that demands a dispensation with Section 5A must necessarily be an urgency which will not brook a delay of 30 days. In other words, the statute itself impliedly speaks about the circumstances under which the dispensation can be made. The conduct of the Government here indicates that they have waited nearly for two months to publish this and at the same time have taken away a valuable right conferred on the citizens. An urgency to suit the convenience of the Government and at the same time depriving the citizen of a very valuable right, is not the one contemplated by the Act'.

'In this case the notification under Section 3 Ext. P-2 is dated 20-5-1963, The direction under Sub-section (4) of Section 19 was made on 23-6-1963, The notice under Section 9, Ext. P-4, however, was published in the Kerala Gazette as required by Sub-section (5) of that section only on 21-1-1964.

The dates are significant and belie the story of any extreme urgency as the foundation for the action under Sub-section (4) of Section 19. An order is vitiated by mala fides if it is passed by an authority without applying its mind at all, even though there is no evidence of any personal ill-will, corrupt motive, or other improper purpose'. In the above case this Court quashed the direction issued under Section 19 (4) of the Act in that land acquisition proceedings.

6. The learned counsel further contends that the acquisition in question being one at the instance of the Mafankara Orthodox Syrian Church Medical Mission Hospital and for the construction of an approach road between the Hospital and its Doctors' quarters. Part VII of the Act dealing with acquisition of land for companies applies and hence Ext. P-2 notification is hit by Section 42 of the Act. Section 42 of tie Act reads;

42. Previous consent of Government and execution of agreement necessary -- The provisions of Sections 6 to 39, both inclusive, shall not be put in force in order to acquire land for any company unless with the previous consent of the Government, nor unless the company shall have executed the agreement hereinafter mentioned'.

The learned counsel also refers to Section 43 of the Act which insists that the consent referred to in Section 42 can be given only after the Government are satisfied on the basis of a report by the Collector or after enquiry is held. The learned counsel points out that Ext. P-2 was not issued with the previous consent of the Government, No agreement under Section 44 was also executed by the Malankara Orthodox Syrian Church Medical Mission at whose instance the acquisition was started. So Exts. P-2 and P-3 are orders without jurisdiction. In support of his contention the learned counsel refers to the decision of the Supreme Court in R. L. Arora v. State of Uttar Pradesh (AIR 1962 SC 764) wherein Wanchoo J. (as he then was) speaking for the Court said:

'..... the operative provisions ofthe Act for the purpose of acquiring land for a company will only apply when two conditions precedent have been satisfied, namely, (i) the previous consent of the appropriate government has been given to the acquisition, and (ii) the company has entered into an agreement as provided in the Act.' The learned counsel also contends that the purpose for which the acquisition is started fa not a public purpose and so the proceedings are bad in law for that reason also. In support of this contention the learned counsel also relies on a number of decisions.

7. The learned Government Pleader contends that the stage from which Part VII of the Act has to be applied has not reached and hence the Original Petition is premature. The learned Government Pleader points out that provisions in Section 6 of the Kerala Act,1661 and the corresponding Section 6 of the Land Acquisition Act, 1S94 (Central Act) are not similar. The secoud proviso to Section 6 (1) of the Central Act is in the following terms: 'Provided further that no such declaration shall be made unlass the compensation to be awarded for such property is to be paid by a Company, or wholly or partly out of public revenues or some Fund controlled or managed by a local authority'.

8. The learned Government Pleader points out that under Section 19 of the Act the State Government or the District Collector has the power to resort to emergency acquisition. But what exactly is the extreme emergency in this case, the Government Pleader cannot say. It is pertinent to note that no light is thrown on this aspect of the matter by the counter-affidavit filed in the case also. On the question of the delay caused in issuing Ext. P-3 notice the Government Pleader contends that that cannot be an indication that there was no urgency as a matter of fact. The Government Pleader relies on the decision of my learned brother Gopalan Nambiyar J, in Raman v. District Collector (1967 Ker LT 552). In the above decision, Gopalan Nambiyar J. said:

'A delay of more than thirty days from the date of Section 3 (1) notification in proceeding with the land acquisition will not necessarily spell a negation of urgency for the acquisition. The urgency is not to be tested from the date of the original notification. Hence the invocation of the urgency provisions was valid and proper.' The learned Government Pleader also contends that the purpose for which the acquisition is started is a public purpose and relies on a number of decisions in support of his contention.

9. On a consideration of the contentions of the counsel op both sides in the light of the facts and circumstances of the case I come to the following conclusions: No doubt the State Government and the District Collector have the power to invoke Section 19 (4) of the Act and give a direction to the Land Acquisition Officer that the provisions of Section 5 of the Act need not be complied within the case of any land acquisition. But it should be remembered that they are thereby denying the person interested in the land the right to object to the acquisition. This is a valuable right and it goes without saying that this right should not be interfered with unless there are compelling reasons. That is why Courts have repeatedly said that the emergency powers can be resorted to only in cases of emergencies which will brook no delay. Under Section 5 of the Act only thirty days' time is allowed to the person interested in the land to file his objections. In a case where taking possession of the land cannot be put off for such a short period invoking of Section 19 (4) will be justified. Otherwisethere will be no justification. Simply to suit the convenience of the Land Acquisition Officer, Section 19 (4) of the Act cannot be invoked. The urgency must be an urgency concerning the purpose of the acquisition and before invoking Section 19 (4) the Government or the Collector, as the case may he, must form a definite opinion about the application of the section. A mere statement that the matter is urgent is pot enough. Nothing is stated in the counter-affidavit about the urgency. Moreover, the delay of more than a month in issuing Ext. P-3 notice to the petitioners itself belies the story of urgency. The averment in the Original petition that there is already a motorable road to the staff quarters is not denied in the counter-affidavit. Then even if a better road is a must, where is the urgency. The acquisition in question is for the purposes of the Malankara Orthodox Syriam Church Medical Mission Hospital and the respondents have no case that an agreement as contemplated by Section 44 of the Act has been executed. If this be so, then as per Section 42 of the Act, Sections 6 to 39 cannot be irrvoked. The 2nd respondent has invoked Section 19 (4) of the Act and this is dear from Ext. P-2 notification itself. So, Ext. P-2 and the order of the 2nd respondent dated 6-8-1973 referred to in Ext. P-2 are hit by Section 42 of the Act.

10. For the reasons stated above, I quash Ext P-2 and set aside the order No. K. Dis, 13096/73/C3 dated 6-6-1973 of the 2nd respondent-District Collector. Ext. P-3 which is only a notice issued to the petitioners in pursuance of Ext P-2 notification will not have any legs to stand when Ext. P-2 goes. So, Ext. P-3 is also quashed. The question whether the acquisition initiated by Ext P-2 is for a public purpose or not is left open, Respondents 1 and 3, are free to initiate fresh acquisition proceedings for the road in question. In that case, the request of the 1st petitioner contained in his statement dated 19-9-1972 referred to in para. 8 of the counter-affidavit should also be considered before fixing the alignment of the road. The petitioners are to be given an opportunity to file their objections under Section 5 of the Act and that must be considered and disposed of.

11. The Original Partition is allowed. There will be no order as to costs.